plaint; it wouldn’t be fair — but that the process would be fairly en-

forced and that the judge would never hold it against them, I think

there would be more complaints filed, but I don’t know how you

would go about assuring that, sir.

Senator DeConcini. Mr. Dominguez.

Mr. Dominguez. Your Honor, I agree with Ms. Vance. In Puerto

Rico, as a matter of fact, we did have a procedure that went

through in the early 1970’s. If something new is going to be done,

I would suggest that we would have to do a balancing act between

the independence of the judge versus the discipline of a judge, and

make sure that it is not a decisional matter, that it is not some-

thing created by a decision, that it is something created by conduct

not relating with, obviously, the decisional process.

Senator DeConcini. Good point.

Mr. Casellas.

Mr. Casellas. Senator, I would hope that, at least in my circuit,

the leadership of the other circuit that you mentioned, that we do

have some sort of procedure to file complaints. Now, the statutes

in place, like Ms. Vance said, might not be known. They might be

cumbersome. Maybe they should be streamlined within each cir-

cuit, and then let the bar know exactly what has to be done.

The awareness by the bar of the complaint procedure is very im-

portant. The books are full of statutes that are in disuse. The com-

plaint procedure should be adopted, in my opinion, by the circuit,

if not there now, but most importantly discussed and distributed in

information to the bar so that these complaints can be filed and

they don’t become academic.

Senator DeConcini. All of you have practiced law in one form or

another, and I suspect, as does any practicing lawyer, you have had

an occasion where you thought — maybe you haven’t, but I certainly

16

had in my former practice occasions where I thought the judge was

discourteous and lacked some judicial temperament.

I would like to ask each of you, how do you intend to discipline

yourself and maintain a judicial temperament throughout your life-

time appointment?

Mr. Bryson.

Mr. Bryson. Senator, I think that is a concern that every judge

has to think about as the judge goes on to the bench and continues

on the bench. There is, as you say, a great temptation to simply

conclude that because people defer to you that you are therefore in-

capable of error and deserve at least as much deference, if not

more, than you get.

I think it is just a question of awareness. I think that, as a

judge — and I have seen many judges, as I am sure you have, who

do this very well — as a judge, you have to remind yourself that the

fact that you have been selected for this position doesn’t mean that

you are somehow superior to the people that appear before you or

the parties that have their cases in your hands. It doesn’t mean

that you are entitled to treat them discourteously. It doesn’t mean

that you somehow have some god-given right to decree what their

fates shall be.

Your authority over them is a product entirely of the legal sys-

tem. You are a cog in the legal system, and I think it is something

that you have to remind yourself of over and over again. It is the

only cure for the disease.

Senator DeConcini. Ms. Vance.

Ms. Vance. I agree that you have to remind yourself that you are

a public servant and that you are there to serve the justice system.

It would seem to me that if you reminded yourself of the enormous

responsibility you have to make decisions that affect the lives and

the fortunes and the liberty of other people that that would be a

humbling experience and it wouldn’t make you arrogant.

I think that if you remind yourself that life tenure is designed

to give you the independence to do your job and it was not designed

to set you above the people you were there to serve that you could

keep everything in perspective and remain courteous and even-

handed with the people who appear before you.

Senator DeConcini. Mr. Dominguez.

Mr. Dominguez. Your Honor, I have a friend, a judge friend, that

once said that judges should always remember that they are ap-

pointed and not anointed, and I think that what you have men-

tioned is precisely an indispensable characteristic of a judge, espe-

cially those, obviously, that are appointed for a lifetime. It is some-

thing simply that you have to have the discipline to follow it

through throughout all your career.

Senator DeConcini. Mr. Casellas.

Mr. Casellas. Mr. Chairman, I think really that in my case the

most important thing is to be humble. I think humility is the basic

principle to carry out any professional career. I would start with

being humble. I would start modestly, frankly, by examination of

conscience every night, which I do anyhow, for other reasons.

Then I would work at the judicial temperament in the sense of

we always have to be fair to both sides. We have to make certain

that both sides get a fair shake; be fair to both sides, work on that

17

continually, not let one side take advantage of the other, work on

that continually. That, I think, is judicial temperament. Be hum-

ble, don’t be arrogant, and work at it.

From the point of view of the persons that you are dealing with,

I think we have to be respectful, I think we have to be courteous,

and we have to listen to what the other attorney and other parties

say. I would say these three things, for me, working at it, would

be judicial temperament put into practice.

Senator DeConcini. Senator Specter.

OPENING STATEMENT OF SENATOR SPECTER

Senator Specter. Thank you, Mr. Chairman.

I believe that Senator DeConcini has touched on a really critical

aspect, and that is courtesy. Senator Thurmond made the comment

many years ago that very much impressed me which I repeat when

he is not present, and that was that the more power a person has,

the more courteous he or she should be, and trial judges are at the

top of that list.

I think it is good just to spend a few moments on the subject,

as Senator DeConcini has, because you are all young men and

women and you are going to be on the bench a long time and you

may tend to forget it. Some have said that Federal judges ought

to run every 6 years and Senators ought to have lifetime tenure.

[Laughter.]

But as the years pass, it is easy to forget it, and there is a qual-

ity of the black robe and the permanence in the life tenure which

you just have to focus on again and again and again. When you be-

come impatient, and there is a temptation to do so, or lose your

cool, just think about the day that Senator DeConcini and Senator

Thurmond and I made a comment or two about it.

We do not customarily go very deeply into judicial philosophy in

these sessions. We like to have the hearings here, the format. I

know you will be mindful that you are judges interpreting the law,

not making the law, looking for the congressional intent, and fol-

lowing the strictures of the law and precedent, as opposed to sub-

stituting your own personal views of what the law should be.

There are a lot of questions which could be asked about that, but

I don’t think we will advance the ball very much by extended dis-

cussion on that subject, but it is something that you always ought

to keep in mind.

I would like to put into the record, Mr. Chairman, a letter which

I received from a distinguished attorney, Michael M. Baylson, in

Philadelphia, recommending judge-to-be Sarah S. Vance based on

his knowledge of her work.

[Mr. Baylson’s letter appears on p. 212.]

Senator Specter. You all appear to have good credentials, and

if the practice of the committee holds true, you will soon be con-

firmed. We wish you the very best on your new assignments. It is

a tough job. We expect you to work hard and we expect you to do

justice under the law.

Thank you, Mr. Chairman.

Senator DeConcini. Senator Grassley.

18

QUESTIONING BY SENATOR GRASSLEY

Senator Grassley. I compliment each of you on your appoint-

ment. I have some questions of Mr. Bryson. That doesn’t mean that

you other nominees are not just as important, but I am not pre-

pared to ask you questions, and I would like to ask Mr. Bryson

more to have a discussion with you than a lot of questions. There

is some participation I would like you to have.

I have heard excellent reports about your abilities as a lawyer

and how you will perform as a judge. I have heard particularly that

you are impartial and independent. I would like to address with

you how that impartiality and independence was displayed in your

current position as Deputy Solicitor General. I want to refer to the

Knox case that you know so much about and you know that I have

been involved with.

When it originally came before the Supreme Court, the Solicitor

General’s office filed a brief in opposition to the petition for certio-

rari. It is my understanding that that brief was filed under your

signature. What arguments were contained in that brief supporting

Knox’ conviction, and why did you feel that you wanted to sign

that?

Mr. Bryson. Well, Senator, thank you. The case as it came to the

Supreme Court the first time from the third circuit was one that

came up on writ of certiorari. Of course, our office, the Solicitor

General’s office, traditionally opposes certiorari in the vast bulk of

cases coming from the courts of appeals.

We looked very carefully at that case because that case obviously

was a case of some sensitivity and some difficulty, but we con-

cluded that the third circuit’s judgment should be defended and

that the Supreme Court did not need to grant certiorari in that

case.

As I recall, the opposition that we filed to certiorari— this was,

I think, filed in March 1993, if I am not mistaken. The arguments

we made were basically these: first, that the term “exhibition,”

which was the key term in the statute that was at issue in that

case, a question of whether there was a lascivious exhibition of the

pertinent body parts even though those body parts were covered in

the films that were involved— we argued, as the third circuit had

held, that the term “exhibition” did not necessarily require an un-

covered revelation of the body parts. In other words, you could

have, at least under some circumstances, an exhibition even though

the body parts were covered. We, in other words, were defending

the third circuit’s position.

We also argued that there was some indication in the legislative

history that there was no flat requirement of nudity in order to

qualify as an exhibition under the statute. We further argued in

urging the Supreme Court not to grant certiorari in the case that

this was a case of first impression. There was no conflict among the

circuits, and that, of course, is a very common ground for arguing,

as we often do, that certiorari should not be granted in a particular

case.

I did sign that brief— you are correct — as Acting Solicitor Gen-

eral.

19

Senator Grassley. Unfortunately, the Supreme Court did grant

the petition, and by the time the government’s brief on the merits

was due the administration had changed. What arguments did the

government make in that brief regarding whether the statute re-

quired the child to be essentially nude and act lasciviously herself?

Also, in conjunction with that, reports indicate that you did not

sign the brief and that it was filed by political appointees. Is that

correct?

Mr. BRYSON. Taking the last half of the question first, Senator,

it is true that I did not sign the second brief. That was the brief

on the merits after the Solicitor General had been appointed and

confirmed. That brief took the opposition position, in effect, from

the brief that had been filed in opposition to the certiorari petition

6 months earlier which I had signed.

There is a custom in our office that we, as lawyers, do not typi-

cally contradict ourselves by switching positions in a brief. So, since

that was a switch in positions, I did not sign the second brief.

In that brief— this is the brief on the merits that was filed, I

think, in September or October 1993 — the office took the position,

contrary to what the third circuit had held, that, in fact, some form

of visibility was required of the pertinent body parts in order for

there to be an exhibition.

This was a construction of this term “exhibition” which was not

defined in the statute, but the argument was that you couldn’t

have an exhibition if you couldn’t see the item, the object, the body

part, that was purportedly being exhibited. The argument was that

therefore, since the third circuit had relied on the view that all that

was required was that there be a focus on the area rather than an

actual display of the body parts uncovered and nude, therefore the

third circuit’s legal basis for its ruling upholding the conviction was

flawed and the case had to go back to the third circuit.

Now, there was a second aspect that you mentioned, a second

legal ingredient in the statute which was discussed briefly in that

brief. It wasn’t really at issue in the case because it hadn’t been

raised by the defendant, but it was the question of what the child

has to do in order for the depiction of the child engaged in sexually

implicit conduct to violate the statute.

Now, as you know, the statute has two separate elements. One

is a depiction, and two is that the child has to be involved in sexu-

ally explicit conduct. The approach that was taken in that brief and

in subsequent filings, in which our position has been clarified, I

think, is to say it is not necessary for the child actually to be in-

tending to act lasciviously, but only that the child be acting in a

way that some viewer would regard as lascivious.

I think perhaps because the initial brief was somewhat less clear

than it should have been on this point, I think there has been some

confusion on that. But I think we have cleared it up and that the

position that was taken on remand in the third circuit made, I

think, quite clear that it was not necessary for the child to be

shown to have intended to act lasciviously.

Senator Grassley. Do you have an opinion as to why the Solici-

tor General changed the Department’s position?

Mr. Bryson. Yes, Senator. I think that this was a case of the So-

licitor General, whose responsibility it is to present to the Supreme

20

Court his best conclusion as to what the law requires in light of

his responsibilities to represent the United States — in good faith

and after close study, the Solicitor General concluded that the stat-

ute simply wouldn’t bear the construction that the third circuit had

put on it.

Our office does, on occasion, not terribly often, but on occasion,

confess error or disagree with particular legal conclusions reached

by courts of appeals when cases come before the Supreme Court.

This was one of those instances, and I have to say that although,

of course, I had taken the contrary position 6 months earlier, I feel

very comfortable that the Solicitor General exercised his authority

in this case in good faith and solely on the basis of his reading of

the statute.

Senator Grassley. Well, as you know, that case was remanded

back to the third circuit. In the process of the Supreme Court act-

ing and before it was heard by the third circuit again, all 100 mem-

bers of the Senate had voted to state a disagreement with the Jus-

tice Department’s changed position, specifically that it was con-

trary to congressional intent. The House later passed a similar

measure nearly unanimously, and then 230 Members of Congress

filed an amicus brief in the third circuit against the government’s

position.

In the final analysis, as you probably know, the third circuit

agreed with us and not with the Department. I assume you are fa-

miliar with that case. Do you think that the third circuit’s opinion

can be read to have supported the Justice Department’s changed

arguments, as some in the Department are claiming now?

Mr. Bryson. Senator, I think it is clear that the third circuit said

two things. First, the third circuit did reject the government’s anal-

ysis of the exhibition requirement. In that regard, the third circuit

disagreed with the position that the government had argued on re-

mand. So it is not correct to say that the third circuit embraced or

agreed with the Department’s view in that regard.

There was a second aspect of what the third circuit did that was

consistent with the government’s position, and it was this. The

Court said even on the government’s theory, which was a more re-

strictive construction of the term “exhibition,” we agree with the

government that the evidence in this case was sufficient to support

a conviction. The Court therefore, in that regard, agreed with the

government in its principal submission that at least if you view the

term “exhibition” more narrowly than the third circuit, in fact,

viewed it — nonetheless, if you view it in that narrow fashion pre-

sented by the Department, the evidence is still sufficient to support

the conviction and the conviction should therefore stand on either

ground.

Senator Grassley. I thank you for discussing this with me and

for other people to hear, as well. I think your discussion is good.

I think you have shown competence and independence, and I will

be glad to support you to your appointed position.

Mr. Bryson. Thank you.

QUESTIONING BY SENATOR DECONCINI

Senator DeConcini. Senator Grassley, thank you.

21

Along that line, let me ask each of the nominees a question re-

garding legislative history and congressional intent. You certainly

have expressed some concern already, Mr. Bryson, but what are

each of your views on the role of legislative history when a court

is faced with ambiguous language? Specifically, which factors

should a court rely on in a case of statutory construction beyond

the statutory language itself?

Mr. Bryson. Well, Senator, as your question suggests, the first

principle of statutory construction absolutely must be to go to the

language of the statute. There is a quip that occasionally, I think,

Judge Scalia will be heard to repeat, which is that some judges

seem to approach statutory construction by saying that if the legis-

lative history is unclear, perhaps we should resort to looking at the

statute.

That is not the approach that the current Supreme Court takes.

It is not the approach that I think ought to be taken. The first

thing to do is to go to the language of the statute. The language

of statutes is not always clear. It isn’t always entirely clear how

the language applies in a particular case. There, I think you have

to resort — and I do not take the view that legislative history is ir-

relevant — I think you have to resort to whatever help you can get

from legislative history, context, the background against which a

statute was enacted, the purposes that the statute was intended to

serve, the evils that the statute was intended to address.

Those are the kinds of evidence that you can bring to bear in try-

ing to get the entire picture of what a statute is intended to mean,

starting with the language of the statute and using those other de-

vices as well.

Senator DeConcini. Thank you, Mr. Bryson.

Ms. Vance.

Ms. Vance. I think that I would agree with Mr. Bryson that in

construing with a statute that you begin with looking at the lan-

guage of the statute to ascertain congressional intent, and the first

rule of approach is the rule of plain meaning where you construe

the words of the statute in their ordinary, plain meaning.

If the plain meaning is not clear from the statute and the word-

ing is ambiguous, I do think that it is appropriate to consider legis-

lative history. I understand that there is a debate as to the reliabil-

ity of legislative history as an indication of congressional intent.

However, I do think that there are certain types of legislative his-

tory, such as committee reports, that should be authoritative on

legislative intent, and that you could be safe in relying on as an

indication of congressional intent, whereas there may be things

that are put in the record, so to speak, that may not be necessarily

a part of the real debate on the statute.

Senator DeConcini. What about statements of Members of Con-

gress that are put in the record, who were involved in the actual

drafting and passing of the legislation?

Ms. Vance. I definitely think that you should read them and con-

sider them.

Senator DeConcini. They are relevant, in your opinion?

Ms. Vance. They are relevant in the context of the debate and

what the issues were at the time and the Senator’s role in that.

Senator DeConcini. Mr. Dominguez.

22

Mr. Dominguez. I would concur with what my two colleagues

have said. The only red light would be we must be extremely cau-

tious with ex parte, self-serving statements that may be placed in

the history of a law. You would have to look more at the live debate

rather than something or some comment that gets put into the

record when nobody is there, when there is no real debate. You

have to look with caution there.

Senator DeConcini. Mr. Casellas.

Mr. Casellas. Sir, I have little to add. I concur with my col-

leagues. When there is plain meaning, there should be plain mean-

ing, and I think that use of legislative history is useful sometimes.

Senator DeConcini. Thank you very much. I have no further

questions. I don’t believe Senator Specter does. We thank you for

your attention and your responsiveness today. The committee will

certainly consider your testimony and the comments of those who

have spoken on your behalf.

Thank you very much.

Ms. Vance. Thank you.

Mr. Casellas. Thank you.

Mr. Dominguez. Thank you.

Mr. BRYSON. Thank you, Senator.

Senator DeConcini. The committee will stand in recess, subject

to the call of the chair.

[Whereupon, at 3:17 p.m., the committee was adjourned.]

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